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I looked in the BPD and I didn't see anything. But it's late on a Friday afternoon. I sent Datair an e-mail. I hope they can help. On Monday. Have a great weekend everyone!

He can disclaim it, but he's not in control of who gets it. If there is no secondary beneficiary, then her estate determines the recipient.

That sounds correct. It looks like you are using a fresh start date of 12/31/2021 and a formula without wear-away (sum of the frozen as of fresh start plus benefits accrued after the fresh start).

Mike is correct, see 1.410(b)-7(d)(5). However, you still need to determine how many participants in plan A are are non-excludable under plan B and vice-versa, since they will be included in the denominators of your coverage tests. If both plans cover any key employees, be careful with your top heavy determination dates.

We use Datair's doc, and they came back with pretty much the same analysis as you just shared. Thanks.

Must test separately.

Hi SSRRS... unfortunately, I'm not even a novice (let alone expert) in issues of estates and companies of owners that pass away. But, I'll offer my 2 cents. I don't have a clue for item 1. For item 2, if the company was dissolved before the owner passed away, the plan had to have been terminated, since a plan cannot exist without a sponsor. And if so, I think the excess assets would go to the owner up to 415 limits at plan termination. Then, any excess would go to the company who pays the 50% excise tax, assuming the company lasts long enough after plan termination and before dissolving. Complicated, at least...

Is 12 months less than 7 months? Agree with BG and Bill.

To ESOP Guy: Nope, not a math error on my part. The total would appear automatically correctly, but then would change after I reopened the file. For example, I would input 3,333 into 16a(1) and 1,111 into 16a(2). 16a(3) initially would display 4,444, but after logging out and back in, 16a(3) would change to 33,331,111 (essentially a combination, rather than a sum, of the two values). When I call pay.gov they tell me they've never heard of this issue... Such fun.

1st. Sue your lawyer if you had a lawyer. It is his/her obligation to finalize the QDRO for you and that means to serve a certified copy on the Plan Administration in a timely fashion or to give a Notice of Adverse Interest/Claim (see below). Attached find some articles that set forth what has become the standard of care almost everywhere in the US, but I obviously don't know about your state law. The lawyer's malpractice insurance carrier may reimburse you for your loss. 2nd. Your ex-husband still owes you your share of the money. The QDRO is just a collection mechanism like a garnishment or an attachment. It is not evidence of your agreement or the court's ruling that you receive your share. The QDRO is not the document that creates the obligation. Hire a good lawyer and sue your ex-for contempt. Ask that he be incarcerated until he pays you. And that he be fined $10,000 a day for any delay in paying you. Ask for a judgment to be entered that you can use as a basis of attaching and garnishing his other property to satisfy the judgment. Ask for pre- and post judgment interest on the judgment at the official judgment rate. 3rd. The type of retirement account is important. It sounds like a 401(k). In most plans there is no requirement that a Participant get the consent of, or give notice to, his spouse or former spouse to withdraw the money from his 401(k) when he leaves his job, but that is not the end of the discussion. Different plans (sponsored by private companies, Federal, state, county, municipal, union and church plans, may have provisions that require such consent or notice. The Plan may be off the hook, but due diligence by a competent attorney means finding out for sure. AND, you may just find that they do have such a requirement and that your ex- forged you name to a consent. It happens more often than you can imagin. You never know when you will find a pearl in the oyster. See below. 4th If the Plan had actual notice that he is divorced or that there is a court order that might impact his 401(k) Plan, the Plan documents or their normal cautionaly procedures may provide for notice to the former spouse, or for the consent of the former spouse, or they just may just refuse to release any money until they receive direction from the Court or unless the parties agree. The preferred practice would have been for your attorney to have sent a Notice of Adverse Claim/Interes to the Plan as soon as the Separation Agreement was signed or as soon as the judge ruled on your entitlement, normally in the Decree of Divorce. Here are 3 applicable cases on the subject. Note that Plan Administrators have a fiduciary duty not only to the Plan and to the Participant, but to the Alternate Payee (that's you). See the 2020 case, Liccione v. Moea Goron-Futcher, No. 3116, September Term, 2018, Court of Special Appeals of Maryland (2020) that you can find at - https://scholar.google.com/scholar_case?case=9037414859326378600&hl=en&lr=lang_en&as_sdt=6,33&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:12484640753426065479:AAGBfm1agvHLwT5aWZ_N6PDZrK7iWFqV8A&html= In re: Marriage of Baker, 251 Cal. Rptr. 126, 204 Cal.App.3d 206 (1988)- https://scholar.google.com/scholar_case?case=16441361013389152593&q="notice+of+adverse+interest"+QDRO&hl=en&lr=lang_en&as_sdt=20000006&as_vis=1 In re: Marriage of Gowan, 54 Cal.App.4th 80 (1997) - https://scholar.google.com/scholar_case?case=1596374749324836669&q="notice+of+adverse+interest"+QDRO&hl=en&lr=lang_en&as_sdt=20000006&as_vis=1 Good luck. David JLG Article - It Ain't Over.pdf Malpractive - Lawyer Liability in QDRO Cases - Willick.pdf Shulman QDRO Handbook Table of Contents 2020.pdf Shulman Treatise Table of Contents 2013.pdf Top-QDRO-Mistakes-Attorneys-Make-and-How-to-Avoid-Them (1).pdf

Agree with BG, but all the dates you mentioned don't make sense to me.

What document provider do you use? We use Relius (PPD version). Under the definition of compensation is the following definition of excluded compensation: (G) Excluded Compensation. Excluded Compensation means such Compensation as the Employer in its Adoption Agreement elects to exclude for purposes of this Section 1.11. Regardless of the definition of Compensation selected in the Adoption Agreement, the Plan Administrator may adopt a uniform policy for purposes of determining the amount of a Participant's Elective Deferrals of excluding non-cash Compensation. For purposes of this Section 1.11(G), Non-cash Compensation means tips, fringe benefits, and other items of Compensation not regularly paid in cash or cash equivalents, or for which the Employer does not or may not have the ability to withhold Elective Deferrals in cash for the purpose of transmitting the Elective Deferrals to the Plan pursuant to the Participant's Deferral Election. Additionally, the Employer may, on a uniform and nondiscriminatory basis, provide different deferral elections for different items of Compensation (e.g., a separate deferral election for bonuses), and may exclude for purposes of calculating elective deferrals one or more items of irregular pay (e.g., car allowance) in accordance with the Adoption Agreement. Unless otherwise specified, the Plan Administrator shall determine the amount of a Participant's Compensation (for purposes of allocations), by disregarding Excluded Compensation. If your plan has this or similar language, would you be able to hang your hat on the "irregular pay" language?

The audit exemption is only for partial plan years that last 7 months or less. It doesn't look like you had a short plan year.

in that case, there is no QDRO so the plan did nothing wrong. However assuming the divorce decree awarded you half of the participants account balance, you will need to contact your lawyer and sue the participant to get it back. Just like if the court awarded you the car, but your ex jumped in and drove away.

One can always ask the court to enforce it's order against the offending spouse - but as ESOP Guy says, unless the order is submitted to the plan and determined to be a "Q"DRO, it can't be enforced against the plan.

Are you saying the DRO was never submitted to the plan? If so, the DRO was never a QDRO. Please clarify if the DRO was never submitted to the plan to determine if it was qualified and thus a QDRO.

Yes, deferrals should have been taken from vacation buy back pay. Maybe not a resolution but at least a memo from the employer to the plan administrator (yes, likely the same entity) that authorizes PS contributions "as attached" and then include your PS report. On audit, IRS will ask for it - at least from my experience.

Mr. Bags: You are right that the TH exclusion is gone. Only plans that are solely funded with deferrals and a Safe Harbor contribution get the pass. Keep in mind, that includes discretionary match that satisfies ACP SH.

The ADP safe harbor is not in jeopardy. However, you will most likely have to ACP test the discretionary match. Is the plan top-heavy? This type of arrangement lends me to think the top-heavy exclusion is lost and the plan may have to cover some non-deferring employees with a top-heavy contribution. I don't like this plan design for a safe harbor plan, but I say that alot.

No. ADP test is still cool.

Since 1979, the Teachers' Retirement System of the City of New York has administered a supplemental 403(b) plan. In error, the Department of Taxation and Finance treats the TRS 403(b) plan as a pension plan of local government. Pensions of local government are exempt from the state income tax. The 403(b) plan is pre-tax. Making distributions tax free changes the 403(b) contributions from being pre-tax to tax-free. We all know there is no such such thing as a tax-free retirement plan. See: NY State Department of Taxation and Finance publication 36 p.12. What say you?